A coalition of environmental and conservation groups have given US EPAnotice of their intent to sue over the Agency’s failure to timely review Ohio’s and Michigan’s biennial impaired waters listings. Under §303(d)(2) of the Clean Water Act (CWA), US EPA is required to approve or disapprove a state’s proposed list of impaired waters not meeting water quality goals within 30 days of submission. The Integrated Reports containing Ohio’s and Michigan’s impaired waters listings were sent to US EPA well over 30 days ago, with Ohio’s being sent on October 20, 2016 and Michigan’s on November 10, 2016.

The coalition’s notice marks the latest effort of advocates calling for the establishment of a regional Total Maximum Daily Load (TMDL) implementation plan to address nutrient issues driving Lake Erie’s harmful algal blooms (HABs). Waters designated as “impaired” typically require the establishment of a TMDL plan outlining pollution reductions from point and non-point sources, such as agricultural runoff, necessary to meet and maintain water quality standards. While Michigan’s 2016 Integrated Report listed its portion of the open waters of Lake Erie’s western basin as impaired, Ohio’s 2016 Integrated Report designated as impaired only the shorelines and the drinking water intake areas for the cities of Oregon and Toledo. Moreover, both States have made clear their preference to address Lake Erie’s HABs through already-existing binational and domestic nutrient reduction strategies rather than a regional TMDL.

The coalition groups are likely to pursue an appeal of US EPA’s decision on the States’ impaired waters listings if the Agency opts not to develop a TMDL for Lake Erie. In comments submitted on Ohio’s report, members of the coalition argued that only the development of a federally-led multi-state TMDL similar to the approach taken for the Chesapeake Bay will ensure that states hold those contributing nutrients to Lake Erie accountable:

In sum, our point is that a TMDL and its implementation plan must include measures that will successfully restore beneficial uses and meet water quality criteria. Should they prove unsuccessful, then the states must implement stronger measures; failing to meet a TMDL is not an option…. [O]nly a TMDL and its implementation plan confers the statutory obligations for the state to take stronger action that goes beyond relying on voluntary measures. All others are merely aspirational plans with no regulatory backstop to ensure they are successful.

However, Ohio’s Integrated Report emphasizes that the TMDL process would not give Ohio or US EPA any additional authority to regulate non-point nutrient sources and that the shared border with Canada differentiates Lake Erie’s Western Basin from the Chesapeake Bay. The report cites current domestic nutrient reduction efforts as well as those of both the US and Canada under the Great Lakes Water Quality Agreement, which establishes a 40% phosphorus reduction goal by 2025, as the more appropriate course of action. Likewise, in speaking to the Detroit News after the release of Michigan’s report, the Director of the Michigan Department of Environmental Quality stated that developing a TMDL would be “like taking a sledgehammer when you might need a pencil.”

While advocates have touted the regional TMDL developed for the Chesapeake Bay as a potential model for Lake Erie’s Western Basin, it is unclear if the Trump Administration would support such an approach. During a recent confirmation hearing, the Trump Administration’s nominee to head US EPA, Oklahoma Attorney General Scott Pruitt, commended cooperative efforts like those in the Chesapeake Bay where states join together to address water quality issues but downplayed US EPA’s authority to impose such regional requirements where states are not supportive. These comments suggest that US EPA may be more likely to defer to the states on water quality issues such as those involving HABs on Lake Erie.

With the 60-day waiting period imposed by the CWA before the coalition can move forward with its lawsuit set to expire in mid-February, we may soon get a clearer indication of how the US EPA will approach such water quality issues under the Trump Administration.

Andrew Etter’s practice focuses on environmental, health and safety matters. This practice includes actively monitoring new legislative and regulatory developments in the federal and state environmental context and counseling clients on strategies related to those proposals. He is experienced in a wide range of environmental litigation ranging from the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) to common law claims dealing with property rights and public nuisance issues.

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